A Badly Flawed Election

1.

The 2000 election has finally ended, but in the worst possible way—not with a national affirmation of democratic principle but by the fiat of the five conservative Supreme Court justices—Chief Justice Rehnquist and Justices Kennedy, O’Connor, Scalia, and Thomas—over the fierce objection of the four more liberal justices, Justices Breyer, Ginsburg, Souter, and Stevens. The conservatives stopped the democratic process in its tracks, with thousands of votes yet uncounted, first by ordering an unjustified stay of the statewide recount of the Florida vote that was already in progress, and then declaring, in one of the least persuasive Supreme Court opinions that I have ever read, that there was no time left for the recount to continue. It is far from certain that Gore would have been elected if the recounts had been completed; some statisticians believe that Bush would have picked up more additional votes than Gore. But the Court did not allow that process to continue, and its decision ensured both a Bush victory and a continuing cloud of suspicion over that victory.

David Boies; drawing by David Levine

Though it took six opinions for all the justices to state their views, the argument of the five conservatives who voted to end the election was quite simple. The Florida Supreme Court had ordered a recount of “undervotes” across the state, but instead of adopting detailed rules about how the counters were to decide whether a ballot that the counting machine had declared to have no vote for president was actually a vote for one candidate—rules that might have specified, for example, that if not a single corner of the “chad” of a punch-card ballot had been detached, the ballot could not count as a vote—the Florida court had directed only that counters count a vote if they found, considering the ballot as a whole, a “clear intention” of the voter to vote. The five conservatives noted that this more abstract standard had been applied differently by counters in different counties, and might be applied differently by different counters within a single county, and they therefore held that the use of the standard denied voters the equal protection of the law that the US Constitution’s Fourteenth Amendment requires.

The natural remedy, following such a ruling, would be to remand the case to the Florida court to permit it to substitute a more concrete uniform counting standard. Breyer, in his dissenting opinion, suggested that course. “[The] case should be sent back for recounting all undercounted votes,” he said, “in accordance with a single uniform standard.” But the conservatives declared that since the Florida legislature intended to take advantage of the “safe harbor” provision of federal law, which provides that election results certified by states to Congress by December 12 are immune from congressional reexamination, any further recount the Florida court ordered would have to be completed by that date—which ended two hours after the Supreme Court handed down its…

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